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Procedure of appeal and the function of appellate board (Section 116)

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(a) Has, at least five years held the post of Controller under this Ai or has exercised the functions of the Controller under this Act of at least five years.

(b) Has, for at least ten years functioned as a Registered Pater Agent and possesses a degree in engineering or technology or masters degree in science from any University established under law for the time being in force or equivalent.

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The Central government shall determine the nature and categories of the officers and other employees required to assist the Appellate Board in the discharge of its functions under this Act and provide the Appellate Board with such officers and other employees as it may think fit.

The salaries and allowances and conditions of service of the officers and employees of the Appellate Board shall be such as may be prescribed.

The officers and other employees of the Appellate Board shall discharge their functions under the general superintendence of the Chairman of the Appellate Board in the manner as may be prescribed.

Every appeal under this section shall be in the prescribed form and shall be verified in such manner as may be prescribed and shall be accompanied by a copy of the decision, order or direction appealed against and by such fees as may be prescribed.

Every appeal shall be made within three months from the date of the decision, order or direction, as the case may be, of the Controller or the Central Government or within such further time as the Appellate Board may, in accordance with the rules made by it allow.

Section 117B prescribes the procedure and powers of the Appellate Board. The provisions of sub-sections 2 to 6 of section 84, section 87, section 92, section 95 and section 96 of the Trade Marks Act, 1999 shall apply to the Appellate Board in the discharge of its functions under this Act as they apply to it in the discharge of its functions under the Trade Marks Act, 1999.

An application for revocation of a patent before the Appellate Board under section 64 and an application for rectification of the register made to the Appellate Board under section 71 shall be in such form as may be prescribed.

A certified copy of every order or judgment of the Appellate Board relating to a patent under this Act shall be communicated to the Controller by the Board and the Controller shall give effect to the order of the Board and shall, when so directed, amend the entries in, or certify, the register in accordance with such order.

The Controller shall have the right to appear and be heard in any legal proceedings before the Appellate Board in which the relief sought includes alteration or rectification of the register or in which any question relating to the practice of the patent office is raised; in any appeal to the Appellate Board from an order of the Controller on an application for grant to a patent – which is not opposed, and the application is either refused by the Controller or is accepted by him subject to any amendments, modifications, conditions or limitations; or which has been opposed and the controller considers that his appearance is necessary in the public interest, and the controller shall appear in any case if so directed by the Appellate Board.

Unless the Appellate Board otherwise directs, the Controller may, in lieu of appearing, submit a statement in writing signed by him, giving such particulars as he thinks proper of the proceedings before him relating to the matter in issue or of the grounds of any decision given by him or of the practice of the patent office in like cases, or of the matters relevant to the issues and within his knowledge as the Controller may deem it necessary, and such statement shall be evidence in the proceeding.

All cases of appeals against any order or decision of the controller and all cases pertaining to revocation of patent other than on a counter­claim in a suit for infringement and rectification of register pending before any High Court, shall be transferred to the Appellate Board from such date as may be notified by the Central Government in the Official Gazette and the Appellate Board may proceed with the matter either de novo or from the stage it was so transferred.

The Appellate Board may make rules consistent with this Act as to the conduct and procedure in respect of all proceedings before it under this Act.

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